Gray v. Colvin

Filing 32

ORDER GRANTING 25 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 27 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is reversed and this matter is remanded for an award of benefits consistent with this Order. Signed by US District Judge Terrence W. Boyle on 8/29/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-413-BO
BOBBY GRAY,

)
)

Plaintiff,

)
)

V.

)

ORDER

)

CAROLYN COLVIN,
Acting Commissioner of Social Security,

)
)

Defendant.

)

)

This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 25, 27]. A hearing on this matter was held in Elizabeth City, North Carolina on
July 28, 2014. For the reasons discussed below, plaintiffs motion is GRANTED, defendant's
motion is DENIED, and, accordingly, the judgment of the Commissioner is REVERSED.
BACKGROUND
Plaintiff protectively filed for disability insurance benefits (DIB) under Title II ofthe
Social Security Act on May 4, 2010, alleging disability beginning on March 4, 2009. The Social
Security Administration denied plaintiffs application initially and upon reconsideration. On
October 13,2011, Mr. Gray appeared and testified before an Administrative Law Judge (ALJ).
On December 1, 2011, the ALJ denied Mr. Gray's application. The Appeals Council denied
plaintiffs request for review on April 5, 2013, and the ALJ's decision became the final decision
of the Commissioner on that date. Mr. Gray now seeks judicial review of the Commissioner's
final decision pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY
Plaintiff suffers from a degenerative disc disease of the lumbar spine following a work
accident on March 4, 2009, since which he has not worked. [Tr. 34]. Mr. Gray underwent several
MRis in connection with this injury, which showed progressive degeneration. [Tr. 230, 324, 589,
1

591-92]. Mr. Gray underwent extensive treatment for his back pain, including surgery on July
29,2009, but his pain persists. [Tr. 35-39, 235-36]. At the ALJ hearing in 2011, plaintiff
testified that he still experienced back pain every day, despite surgery, using a Tens unit from
two to seven times per week, and taking numerous prescription pain medications. [Tr. 35-37].
Mr. Gray also testified that he could only stand for approximately two hours before needing to
rest, and he could only sit in a chair for up to one hour before his feet went numb and he
experienced back pain. [Tr. 38-39]. In addition to back pain, plaintiff suffers from shoulder pain,
knee pain, hepatitis C, hypertension, depression, and anxiety. [Tr. 17].
DISCUSSION
When a social security claimant appeals a final decision of the Commissioner, the district
court's review is limited to the determination of whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389,401 (1971). Substantial evidence is defined as "evidence
which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v.

Heckler, 739 F.2d 987,989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)). Ifthe Commissioner's decision is supported by such evidence, it must be affirmed.

Smith v. Chafer, 99 F.3d 635, 638 (4th Cir. 1996).

1

Evidence of the most recent MRI, performed in 2012, was submitted after the ALJ's decision
but was presented to the appeals council and thus is appropriately considered here. Wilkins v.
Secy, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en bane).
2

In making a disability determination, the ALJ engages in a sequential five-step evaluation
process. 20 C.P.R.§ 404.1520; see Johnson v. Barnhart, 434 P.3d 650 (4th Cir. 2005). At step
one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At
step two, the claim is denied if the claimant does not have a severe impairment or combination of
impairments significantly limiting him or her from performing basic work activities. At step
three, the claimant's impairment is compared to those in the Listing of Impairments (Listing).
See 20 C.P.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing or is
equivalent to a listed impairment, disability is conclusively presumed. If the claimant's
impairment does not meet or equal a listed impairment, then the analysis proceeds to step four,
where the claimant's residual functional capacity ("RPC") is assessed to determine whether
plaintiff can perform his past work despite his impairments. If the claimant cannot perform past
relevant work, the analysis moves on to step five: establishing whether the claimant, based on his
age, work experience, and RPC can perform other substantial gainful work. The burden of proof
is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the
fifth step. Pass v. Chater, 65 P.3d 1200, 1203 (4th Cir. 1995).
At step one, the ALJ determined that plaintiff met the insured status requirements and
had not engaged in substantial gainful activity since his alleged onset date. [Tr. 17]. Plaintiff's
degenerative disc disease of lumbar spine, degenerative joint disease with knee and shoulder pain
depression, hepatitis C, obesity, and bilateral foot numbness were considered severe impairments
at step two, but were not found alone or in combination to meet or equal a Listing at step three.
[Tr. 17-18]. After finding plaintiff's statements not entirely credible, the ALJ concluded Mr.
Gray could perform a reduced range of light work, but could not return to his past relevant work.
[Tr. 18, 20]. Last, the ALJ considered Mr. Gray's age, education, work experience, and RFC, and

3

found that other jobs existed in significant numbers in the national economy that Mr. Gray could
perform, thereby determining that plaintiff was not disabled as ofthe date of his opinion. [Tr.
23].
The ALJ' s decision in this case is not supported by substantial evidence. An ALJ makes
an RFC assessment based on all of the relevant medical and other evidence. 20 C.F.R.
404.1545( a)(3 ). When formulating plaintiff's RFC, the ALJ relied on the opinion of Dr. Bachara,
a consultative psychologist, who opined that plaintiff retained the capacity to perform simple,
routine, repetitive tasks. [Tr. 22, 303]. Dr. Bachara's evaluation, on which the ALJ placed
significant weight, made no reference to plaintiff's ability to sit, stand, or work. [Tr. 300-303].
The ALJ did not afford significant weight to the opinion of either the state agency medical
consultant or Mr. Gray's treating medical physicians. [Id.].
The ALJ's decision in this case is particularly troubling because he discounted the
opinions of three treating physicians and relied upon a non-treating psychologist's opinion in
formulating an RFC that pertained to plaintiff's physical limitations. The opinion of a treating
physician must be given controlling weight if it is not inconsistent with substantial evidence in
the record and may be disregarded only if there is persuasive contradictory evidence. Coffman v
Bowen, 829 F.2d. 514, 517 (4th Cir. 1987); Mitchell v. Schweiker, 699 F.2d 185 (4th Cir. 1983).

Even if a treating physician's opinion is not entitled to controlling weight, it still may be entitled
to the greatest of weight. SSR. 96-2p. The record contains opinions from three of Mr. Gray's
treating physicians. In 2010, Dr. Rich, a neurologist, noted that Mr. Gray suffered from a disc
that has "basically worn out," and would not be able to return to work involving "heavy frequent
lifting," but might be able to perform "sedentary office work when feasible." [Tr. 249]. This
conclusion is consistent with that of Dr. Reznik, a pain management specialist, who stated that

4

Mr. Gray suffered from "chronic pain," and might be able to perform "sedentary part-time work,
at best." [Tr. 315]. Further, Dr. Breiner, Mr. Gray's primary physician, opined that Mr. Gray
would be able to sit for less than two hours per day, stand for no more than two hours per day,
and walk for no more than two hours per day. [Tr. 412]. The opinions of Drs. Rich, Reznik, and
Breiner are not inconsistent with the record evidence and serve to bolster plaintiff's credibility
regarding his limitations. While the ALJ did not specifically analyze plaintiff's statements
regarding his limitations, the vocational expert testified that if plaintiff's testimony were
credited, there would be no job in the national economy that plaintiff could perform. [Tr. 46-47].
Because the record clearly demonstrates that plaintiff would not be able to stand or sit for the
length of time proscribed by the ALJ' s RFC finding, the Court finds the ALJ' s decision is not
supported by substantial evidence.
The decision of whether to reverse and remand for benefits or reverse and remand for a
new hearing is one which "lies within the sound discretion of the district court." Edwards v,
Bowen, 672 F.Supp. 230, 237 (E.D.N.C. 1987). When "[o]n the state ofthe record, [plaintiff's]

entitlement to benefits is wholly established," reversal for award of benefits rather than remand
is appropriate. Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980). The Fourth Circuit has held that
it is appropriate for a federal court to "reverse without remanding where the record does not
contain substantial evidence to support a decision denying coverage under the correct legal
standard and when reopening the record for more evidence would serve no purpose." Brenden v
Weinberger, 493 F.2d 1002, 1002 (4th Cir. 1974). Remand, rather than reversal, is required when

the ALJ fails to explain his reasoning and there is ambivalence in the medical record, precluding
a court from "meaningful review." Radford v. Colvin, 734 F.3d 288,296 (4th Cir. 2013).

5

The Court, in its discretion, finds that reversal and remand for an award of benefits is
appropriate in this instance, as the ALJ clearly explained the basis for his decision and the record
before this Court properly supports a finding that the Acting Commissioner has failed to satisfy
her burden to show that plaintiff can perform work in the national economy. Were the Court to
consider the new evidence presented to the Appeals Council in the form of the 2012 MRI, the
proper course would be to remand for further proceedings. 42 U.S.C § 405(g); Wilkins v. Secy,

Dep't of Health & Human Servs., 953 F.2d 93,96 (4th Cir. 1991). However, the Court has not
based its decision herein on the 2012 MRI. In light ofthe vocational expert's testimony, there is
no benefit to be gained from remanding this matter for further consideration and reversal is
appropriate.
CONCLUSION
For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 25] is
GRANTED, and defendant's motion for judgment on the pleadings [DE 27] is DENIED. The
decision of the Commissioner is REVERSED. Accordingly, this case is REMANDED for an
award of benefits consistent with this Order.

SO ORDERED.
Thisc:iJ'day of August, 2014.
Ld.'U.''-'-'NCE w. BOYLE
UNITED STATES DISTRICT J

6